Gary C. Hobbs, J.
The Plaintiffs commenced this action seeking a judgment for damages in the amount of $5000.00 for an alleged breach of a residential lease agreement. Here, the Plaintiffs assert that the Defendants defaulted in the rental payment of $600.00 from September of 2015, and engaged in various other breaches of the lease agreement. The Plaintiffs seek damages for the alleged unpaid rent in the amount of $600.00, together with accelerated rent for the months of October, November and December of 2015, and for damages that the Defendants allegedly caused to the leased premises. Defendant Robert Sheerer filed a counterclaim seeking judgment in the amount of $2400.00 for return of his security deposit and for his moving expenses.
This matter came before this Court for a bench trial commencing on March 25, 2016 and continuing thereafter on April 1, 2016. This Court has heard the testimony from the Plaintiffs, Rhoda Butler and Kimberly Butler and Defendants, Robert Sheerer and Staycia Sheerer, and from a non-party witness, Daniel Nolan. This Court received and reviewed Plaintiff's Exhibits 1-10 and 12-16 and Defendant's Exhibits A-G. This Court was also able to observe the demeanor of the respective parties during their respective testimony and evaluate the veracity of the parties' testimony and claims. Based on the credible testimony and evidence in this case, the following are this Court's Findings of Fact and Conclusions of Law.
FINDINGS OF FACTOn June 12, 2015, the Plaintiffs and Defendant Robert Sheerer entered into a written lease agreement, whereby the defendant agreed to rent the Plaintiffs' property located at 18 Thornberry Drive, Glens Falls, New York [Pl.Ex.1]. The Plaintiffs were aware that Defendant Staycia Sheerer was living at the leased premises on occasions, but Plaintiffs never required Defendant Staycia Sheerer sign the lease agreement. The term of the lease commenced on June 17, 2015 and continued thereafter until May 31, 2016. The monthly rent was $1200.00 per month, which was due and payable on the 1st day of each month. The Defendant also paid the Plaintiffs a security deposit in the amount of $1800.00.
Defendant Staycia Sheerer was not a party to the lease agreement.
Contrary to the Plaintiffs' assertion, the fact that Staycia Sheerer signed other documents, such as the Move Out Condition Report [Pl.Ex.4], does not create a contractual relationship between Mrs. Sheerer and the Plaintiffs.
The Plaintiffs had also entered into a separate written lease agreement for the subject premises to Dan Nolan, and Mr. Nolan's lease agreement contained the same rental amount of $1200.00 per month. While both written lease agreements provided that Robert Sheerer and Dan Nolan would each pay $1200.00 per month in rent, the parties understood that Defendant Robert Sheerer and Mr. Nolan were each paying $600.00 per month in rent for a total monthly rental of $1200.00.
In September of 2015, Defendant Robert Sheerer defaulted in his payment of rent in the amount of $600.00. On September 10, 2015, the Plaintiffs served Defendant Robert Sheerer with a 3-day notice to either pay rent or surrender and quit the premises [Pl.Ex.3]. The defendants moved out of the leased premises on or about September 15-16, 2015. Upon vacating the leased premises, the Plaintiff and Daniel Nolan did a move-out inspection of the premises. [Pl.Ex.4].
Dan Nolan had paid his $600.00 rental payment in September and also paid the required late fee of $50.00.
While the Move-Out Condition form was also signed by Staycia Sheerer, her signature merely indicates a return of one key and a garage door opener.
After the defendants left the leased premises, the Plaintiffs found that the dishwasher had developed a leak in the hose; the garbage disposal was loud; there were additional scratches on the kitchen counter top; some partitions needed paint; the bathroom door had a hole in it; the fan in the master bathroom was loud; picture holes in the bedroom were visible and the room needed spackling and painting; the shower had developed a leak inside the sheet rock walls; a baseboard heater was not working properly and needed to be replaced; an existing crack in garage floor was now larger; a light post rod was missing; the washing machine shut-off valve was not working properly; the thermostat was not working properly and needed to be replaced; parts of the house was dirty [i.e.; oven top and inside oven, baseboards in the kitchen, bathroom floor, master bedroom floor]; certain circuit breakers were not working; the hot water heater was not working. While the Plaintiffs claimed that the defendants caused the above damage, during questioning by this Court, the Plaintiffs could not identify the defendants' acts or omissions that allegedly caused these defects. Instead, the Plaintiffs assert that the defendants are responsible for any wear and tear, plumbing leaks, worn-out appliances and electrical fixtures, because the defendants were living at the leased premises.
With respect to the exterior of the premise, the Plaintiffs asserted that Defendant Robert Sheerer washed the exterior of the house, without the Plaintiffs' written permission, which damaged the Masonite siding. However, during cross examination, the Plaintiff Kimberly Butler admitted that she orally consented to Mr. Sheerer washing the siding and had even agreed to deduct $150.00 from his rent for performing this service. The Plaintiffs never told Mr. Sheerer to use a particular type of soap nor advised Mr. Sheerer how to wash the siding .
The Plaintiffs further asserted that the defendants damaged the exterior siding by knocking some of the siding off near the garage door. The defendants maintain that the siding was rotting near the garage door and merely fell off of the house, which is supported by the Plaintiffs' photographs of the siding [Pl.Ex. 15-E and 16].
With respect to their alleged damages, the Plaintiffs submitted an estimate from D. Barrett Plumbing to repair a leak inside the sheet rock wall in the amount of $500.00 [Pl.Ex.7]; an estimate from Burnell's Plumbing and Heating to repair a leak inside the sheet rock wall in the amount of $3,526.25 [Pl.Ex.6]; an estimate from Proficient Construction to repair damaged and rotting siding on the house in the amount of $1,580.00 [Pl.Ex.8]; an estimate from Rich Willard to remove and replace the exterior siding near the garage for an amount of $600.00 [Pl.Ex.9]; a paid receipt in the amount of $50.00 for some undefined "elec work" [Pl.Ex.12]; paid receipts for $234.32 to replace circuit breakers, $139.42 to install a washing machine valve, $427.49 for a new dishwasher installed, and $543.98 in various construction materials from Home Depot and Lowes stores [Pl.Ex.5].
The Plaintiffs advertised the subject property for lease in the Post-Star Newspapers [Pl.Ex.13] and on Craig's List. The Plaintiffs were able to re-rent the subject property in December of 2015 with rental payments commencing in January of 2016 in the amount of $1200.00 per month. The Plaintiffs are seeking accelerated rent from the Defendants for the period of October, November and December of 2015 in the amount of $1200.00 per month.
Paragraph 6 of the Lease Agreement does provide, in pertinent part, that the "Tenant expressly agrees, and understands that upon Landlord's termination of this Lease, the entire remaining balance of unpaid rent for the remaining term of this Lease shall ACCELERATE, whereby the entire sum shall become immediately due, payable, and collectable." [Pl.Ex.1, pg.4, ¶6]. The parties' lease agreement further provides that "[i]f there are multiple Tenants signed to this Lease, all such Tenants are jointly, severally and individually bound by, and liable under, the terms and conditions of this Lease." [Pl.Ex.1, pg.3, ¶5].
CONCLUSIONS OF LAWThe essential elements of a breach of contract claim are 1) the existence of a contract, 2) the plaintiff's performance pursuant to the contract, 3) the defendant's breach of his or her contractual obligations, and 4) damages resulting from the breach. Dee v. Rakower, 112 AD3d 204 (2d Dept. 2013); Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc., 84 AD3d 122, 127, 921 N.Y.S.2d 329 (2d Dept. 2011); Brualdi v. Iberia Lineas Aeraes de España, S. A., 79 AD3d 959, 960, 913 N.Y.S.2d 753 (2d Dept. 2010).
In the present case, the plaintiffs met their burden of demonstrating the essential elements of her claim of breach of contract as against Defendant Robert Sheerer. The Plaintiffs have failed to demonstrate that Defendant Staycia Sheerer ever agreed to become liable as a tenant or that Mrs. Sheerer ever guaranteed Mr. Sheerer's obligations under the Lease Agreement [Pl.Ex.1]. In fact, the parties' lease agreement is clearly between the Plaintiffs and Defendant Robert Sheerer. The fact that the Plaintiffs sent letters or notices to Mrs. Sheerer at the leased premises does not create a contractual obligation between the Plaintiffs and Mrs. Sheerer. As a result, the Plaintiffs' claims against Staycia Sheerer are dismissed.
Defendant Robert Sheerer admitted that he breached the lease agreement by failing to pay his share of rent [$600.00] in September of 2015, which resulted in the Plaintiffs' termination of the parties' lease agreement. However, this Court rejects the Plaintiffs' claim that Mr. Sheerer breached the lease agreement by washing the exterior siding of the subject property without written consent of the Plaintiffs. This Court accepts Mr. Sheerer's testimony that Kimberly Butler orally agreed to allow Mr. Sheerer to wash the exterior of the house, and this oral agreement was confirmed by the Plaintiffs giving Mr. Sheerer a credit of $150.00 on his rental obligation. This Court also rejects the Plaintiffs' assertion that the lease agreement required Mr. Sheerer to obtain written permission from the Plaintiffs before he started washing the siding.
Even where a contract contains a no-oral-modification clause, a party can overcome a no-oral-modification clause by showing either partial performance or equitable estoppel. See United States v. Schwimmer, 968 F.2d 1570, 1575 (2d Cir.1992). To rely on the partial performance exception, "that partial performance must be unequivocally referable' to the new contract." Merrill Lynch Interfunding v. Argenti, 155 F.3d 113, 122 (2d Cir.1998) (quoting Rose v. Spa Realty Associates, 42 NY2d 338, 397 N.Y.S.2d 922, 366 N.E.2d 1279, 1283 (1977)). In other words, "the actions alone must be unintelligible or at least extraordinary, explainable only with reference to the oral agreement." Anostario v. Vicinanzo, 59 NY2d 662, 463 N.Y.S.2d 409, 450 N.E.2d 215, 216 (1983) (internal quotation and citation omitted). Equitable estoppel applies "if one party to the written contract has induced another's significant and substantial reliance upon an oral modification,' and if the conduct relied upon is not otherwise ... compatible with the agreement as written.' " EMI Music Mktg. v. Avatar Records, Inc., 317 F.Supp.2d 412, 421 (S.D.N.Y.2004) (quoting Rose, 397 N.Y.S.2d 922, 366 N.E.2d at 1283).
Here, based on the credible testimony, Mr. Sheerer asked Kimberly Butler if he could obtain credit on his rent by washing the exterior of the house, and Ms. Butler consented. Mr. Sheerer then washed the exterior of the home, with Ms. Butler's oral consent, and for this work Mr. Sheerer was given a credit of $150.00 on his rent. Under these circumstances, Mr. Sheerer has overcome the no-oral-modification clause contained in the parties' lease agreement by showing actual performance.
Having proved a breach of contract for non-payment of rent, this Court must now determine the proper amount of damages that were proved by the Plaintiffs. In a breach of contract action, the court should award damages sufficient to place a plaintiff in the same position that she would have been if the agreement had not been violated. The court should look to the contract to determine what benefits plaintiff would have received if the contract had been fully performed. R & I Electronics, Inc., v. Neuman, 66 AD2d 836, 411 N.Y.S.2d 401 (2d Dept. 1978). However, in some cases, a breach of a contract may prevent a loss as well as cause one. In those cases, the amount saved by the plaintiff from the defendant's breach should be credited to the defendant. R & I Electronics, Inc., v. Neuman, 66 AD2d 836, 838, 411 N.Y.S.2d 401 (2d Dept. 1978), citing, 11 Williston, Contracts (3d ed.). Thus, if a victim derives a benefit from the breaching party's breach of contract, the breaching party only is responsible for the victim's net loss. Aristocrat Leisure Limited v. Deutche Bank Trust Company Americas, 727 F. Supp. 2d 256, 289 (S.D.NY 2010).
In the present case, the Plaintiffs seek payment of Mr. Sheerer's rental arrear for September of 2016 [$600.00], plus accelerated rent for the months of October, November and December of 2015 in the amount of the full rent of $1200.00 per month. Mr. Sheerer objects to this amount, asserting that the Notice to Quit [Pl.Ex.3] directed him to pay or leave, and he chose to leave the premises. Mr. Sheerer also asserts that he was only obligated to pay $600.00 of the monthly rent of $1200.00, and Daniel Nolan was required to pay the balance.
The Plaintiffs are clearly entitled to the rental arrears of $600.00 for the month of September. The termination of the Lease Agreement by the Plaintiffs, which occurred because of Mr. Sheerer's non-payment of his rent, does not relieve Mr. Sheerer of his obligations under the Lease Agreement [Pl.Ex.1, pg.4, ¶6]. As a result, the fact that Mr. Sheerer surrendered the leased premises in response to the 3-day Notice to Quit does not relieve Mr. Sheerer of his obligations under his lease agreement.
With respect to the Plaintiffs' claim for accelerated rent, a residential lease may provide that, upon default in the payment of the rent, the whole of the rent reserved for the balance of the term shall at once become due and payable without any notice or demand. This type of acceleration clause in a residential lease is generally valid and enforceable. 1181 NY Landlord & Tenant Incl. Summary Proc. § 12:26 (4th ed.); Belnord Realty Co. v. Levison, 204 A.D. 415, 198 N.Y.S. 184 (1st Dept. 1923); Engelberg v. Morris, 25 Misc 2d 409, 202 N.Y.S.2d 670 (City Ct. 1960); Myer v. Garlock, 183 Misc. 547, 49 N.Y.S.2d 437 (Sup. Ct. 1944); States Management Corp. v. Pioneer Auto Parks, Inc., 46 NY2d 573, 415 N.Y.S.2d 800, 389 N.E.2d 113 (1979) ("Absent some element of fraud, exploitive overreaching or unconscionable conduct on the part of the landlord to exploit a technical breach, there is no warrant, either in law or equity, for a court to refuse enforcement of the agreement of the parties."); Benderson v. Poss, 142 AD2d 937, 530 N.Y.S.2d 362 (4th Dept. 1988).
In Ross Realty v. V & A Iron Fabricators, Inc., 5 Misc 3d 72, 787 N.Y.S.2d 602 (App. Term 2004), the Court held that, in a nonpayment proceeding, an accelerated rent clause is enforceable in New York, however where the lease does not require the landlord to re-rent the premises upon its recovery of possession after default in rent and to apply the rent received from re-renting to the benefit of the tenant, the accelerated rent clause is deemed to impose a penalty and is not enforceable.
In the present case, the parties' lease agreement did contain an enforceable acceleration clause. In addition, the Plaintiffs attempted to and did re-rent the subject property commencing in January of 2016. Contrary to Mr. Sheerer's position, the parties' lease agreement provided that Mr. Sheerer would be jointly and severally liable for the entire amount of the rental obligation. As a result, the Plaintiffs are entitled to recover the entire amount of accelerated rent from either Mr. Sheerer or Mr. Nolan.
The Plaintiffs have demonstrated that they attempted to mitigate their rental losses by advertising the leased premises for rent in both the Post Star Newspaper and on Craig's List. The Plaintiffs are, therefore, entitled to recover a total of $4200.00 in rental arrears from Mr. Sheerer. This amount includes unpaid rent for September 2015 in the amount of $600.00, together with accelerated rent for the months of October, November and December in the amount of $3600.00.
With respect to the Plaintiffs' claims for damages caused to the leased premises itself, the Plaintiffs have failed to prove, by a preponderance of the credible evidence, that the Defendants caused damages to the leased premises. As a result, the Plaintiffs' claim for damages to the leased premises is denied.
With respect to the damage to the exterior siding, the Plaintiffs admit that the siding was rotting in areas. This Court accepts the defendants' testimony that the siding was rotting and merely fell off near the garage. There was no credible evidence that the Defendants kicked off the siding as maintained by the Plaintiffs. In fact, the Plaintiffs' own photographs depict rotting on the siding where it had fallen off of the house [Pl.Ex.15E, 16]. This Court also accepts the Defendants' testimony that any alleged damage caused by Mr. Sheerer's washing of the exterior of the house resulted from the Plaintiffs failing to advise Mr. Sheerer on the type or amount of cleaning product to be used or the preferred method of washing of the siding.
Similarly, the Plaintiffs failed to prove that the defendants caused the alleged damage to the dishwasher, electrical breakers, garbage disposal, fan in the bathroom, baseboard heater, garage floor, thermostat, washing machine connection or shower. By way of example, the Plaintiffs blame the Defendants for the leaks in the shower plumbing that were found inside of the sheet rock walls. It is difficult to understand how the defendants could have caused the plumbing to leak, when the leak was enclosed inside the walls. In any event, the Plaintiffs failed to produce any credible testimony or evidence to substantiate their claim that the Defendants caused any of these alleged damages to the leased premises.
Defendant Robert Sheerer did admit to causing a hole in a bathroom door. However, the Plaintiffs failed to produce any estimates or paid receipts to demonstrate the cost to repair this hole. --------
The Plaintiffs' remaining alleged damages, such as scratches on the kitchen counter top and that the house generally needed cleaning and painting after the Defendants vacated, constitute nothing more than normal wear and tear. The Defendants are not liable for normal wear and tear to the leased premise [Pl.Ex.4, pg.5]. In any event, the Plaintiffs failed to introduce any proof of the cost to repair any of these alleged damages. The remaining claims for alleged damages to the leased premises have been considered and rejected by this Court, based on a failure of credible proof from the Plaintiffs.
Based on the foregoing, this Court finds in favor of the Plaintiffs, Rhoda Butler and Kimberly Butler as against Defendant, Robert Sheerer, in the amount of $4200.00, less the retained security deposit of $1800.00, for a total judgment in the amount of $2400.00, together with statutory interest thereon from the date of the breach [September 1, 2015] to the date of this Decision and Order in the amount of $132.56, together with costs and disbursements of this action in the amount of $26.00, for a total judgment in favor of the Plaintiffs in the amount $2558.56. The Plaintiffs' claim against Defendant Staycia Sheerer is dismissed with prejudice. The Defendant Robert Sheerer's counterclaim is dismissed. Dated: April 11, 2016 at Glens Falls, New York ________________________ Hon. Gary C. Hobbs ENTER.
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